ALPHONSE MAUNDU KIMONYI VS JOSEPHINE KALEWA MARY AND JAMES NDOLO MULANI AND 1 Others

RULING

1. What is before me is the Notice of Motion dated 22^nd January 2024 brought under sections 3A, 79G and 95 of the Civil Procedure Act (Cap 21), Order 22 Rule 22, Order 42 Rule 6, Order 50 Rule 6 and Order 51 Rules 1 and 3 of the Civil Procedure Rules, 2010 and all other enabling provisions of the law. The applicant seeks orders as follows:
2. That this matter be certified urgent and heard ex parte in the first instance and service thereof be dispensed with.
3. That this Honourable court be pleased to grant leave to the applicant to lodge an appeal and file a Memorandum of Appeal out of time against the judgment and decree of the Hon. Geno L. Okwengu – Senior Rresident Magistrate against the applicants on 1^st November, 2023 in Kilungu SRM Civil Case No. E025 of 2020.
4. That this Honourable court be pleased to grant a stay of execution of the judgment and/or decree issued by Honourable Geno L. Okwengu Senior Resident Magistrate against the applicant on 1^st November, 2023 pending the hearing and determination of this application.
5. That this  Honourable court be pleased to grant a stay of execution of the judgment and/or decree issued by Honourable Geno L. Okwengu Senior Resident Magistrate against the applicant on 1^st November, 2023 pending the hearing and determination of the intended appeal.
6. That this Honourable court be pleased to order stay of execution of the Warrants of Attachment dated 18^th January, 2024 and proclamation from Beta Base Auctioneers dated 18^th January, 2024 for motor vehicle registration No. KCQ 741G and or any form of advertisement of the applicants’ proclaimed properties pending the hearing and determination of this application inter-partes.
7. That Beta Base Auctioneers be ordered to tax his costs to the scale.
8. That this Honourable court allow the applicant to furnish the court with security in the form of a bank guarantee from a reputable bank.

The grounds for the application include;

That the applicant received copy of the judgment from their advocates on record after the delivery of the same and immediately proceeded to review it with a view of making their informed and final decision on the available options; That the delay in filing the appeal was occasioned by the need for communication between the applicants and their advocates in ascertaining the options available with regard to the judgment; That the delay was occasioned by the fact that by the time the applicant got back to their advocates on record in regard to their opinion the time within which to launch an appeal had already expired ; The applicant/appellant is willing to give a bank guarantee for the whole decretal amount to this honourable court to enable the applicant/appellant pursue his appeal.

The application is supported by the affidavit of Alphonse Maundu Kimonyi sworn on the 22/02/2024 where he depones inter alia: That as the applicant he was competent to swear the affidavit in support of the application; That  he is informed by his advocates on record that on 1^st November, 2023 judgment was delivered against him for the plaintiff: general damages: Kshs.230,000; special damages:Kshs.3573/= plus costs and interests of the suit, and that liability was apportionment  at 100% in favour of the plaintiff as against the defendants;That the delay was occasioned by the need for communication between himself and his  advocates to ascertain the options available with regard to the judgment; That further the delay was occasioned by the fact that by the time he got back to his advocates for their opinion the time for launching the appeal had already expired; That his insurer, Directline Assurance Company Limited is ready, willing and able to furnish the court with a bank guarantee from Family bank as security to the court.

The application is opposed by the Affidavit of Josephine Kalewa Mary sworn on 26^th Januray 2024 to te effect that the applicant has not explained the 75 day delay in filing the application, or demostrtae any substantial loss that will be suffered should the orders not be issued as pareyed, and that as the succeesful litigant she is entitled to the enjoyment of the fruits f jer judgment.

That if the court is persuaded to grant the prayers sought then half the decretal sum be brelased to her or her davocates on record and the other hald in a joint interest earnng account. In the alterantive that the enire decretal sum plus costs be deposited in a joint interest earning account in the names of the advocates as security for the performace of the decree.

Parties filed written submissions which I have carefully considered.

The only issue is whether the application is merited.

What emerges from the affidavit of the respondent is that the application is not strenuously opposed for as long as there is security for the performance of the decree in the event that the respondent emerges successful in the appeal.

In the circumstances I allow the application for stay of execution of the judgement and decree in Kilungu MCCC E025 of 2020pending the hearing and determination of the appeal on the following conditions:

a. that the entire decretal sum plus costs and interest is deposited in a joint interest earning account in the names of the advocates within 30 days hereof. In default, the stay will lapse, the application will stand dismissed with costs.

b. the memorandum of appeal together with the Record of Appeal be filed and served within 30 days hereof. Mention on 19^th of June 2024 before the Deputy Registrar for compliance on this.

c. Upon the filing of the appeal this file be closed.

Dated, signed and delivered on 17^th May 2024

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Mumbua T Matheka

Judge